The principles of copyright protecting visual arts

Copyright is the intellectual property right that every author has on his works.

It allows the author of a work to decide how his or her work may be distributed or used, and to receive remuneration in return for the exploitation of that work. 

Copyright protects “all works of the mind, regardless of their genre, form of expression, merit or purpose” (Article L 112-1 of the French Intellectual Property Code). 

 Find out more about Article L 112-1 du Code de la propriété intellectuelle

However, two conditions must be met in order to obtain copyright protection: 
 

• The work must have taken shape

Ideas and concepts cannot be protected by copyright. To prove this, the artist must have given substance to his/her work by expressing it through any means or medium that allows it to materially take shape.

• The work must be original

It must, according to the Court of Justice of the European Union, be an “intellectual creation of the author reflecting his personality and expressing his free and creative choices”.

Beyond these two conditions, there are no formalities to be completed in order to benefit from copyright protection. According to article L111-1 of the French Intellectual Property Code, “the author of a work of the mind enjoys an exclusive intangible property right to this work, by the sole fact of its creation, which is enforceable against all.”

Copyright protection benefits the author or artist of the work, who can transfer his/her economic rights to a third party, either on an exclusive basis (in this case, the artist gives up his/her rights completely for the types of exploitation provided for in the transfer agreement) or on a non-exclusive basis (in this case, the artist may authorize other parties to benefit from the same type of exploitation). 
The transfer of rights is never implicit. 

Even if the work is commissioned, a specific clause of the commission contract must expressly foresee the transfer of rights: otherwise, the artist retains all copyright. 

French law recognizes two categories of rights for artists:

• Moral right

 The moral right protects the artist’s personality through the work created

• Economic rights

The economic right allow the artist to control how his/her works are exploited and to obtain financial consideration.

French law recognizes the moral right of an author/artist designed for the purpose of “protecting the personality of the artist” through his/her work.

The French Intellectual Property Code recognizes that authors and artists have several prerogatives pursuant to their moral right (Article L 121-1, L 121-2 and L 121-4):

• The right to authorship 

Authors/artists have the right to demand that their name (or alias) be mentioned for any exploitation of their works. No one can force an artist to waive this right or to accept that the work be exhibited under the name of another artist.

• The right to respect for the integrity of the work 

Artists have the right to oppose any violation of the integrity of their work (changes, colorization, destruction, dismantling, combination with other elements, etc.). However, it should be noted that for works exhibited in a public space, judges balance this right with the imperatives of safety, the rules of public law and order and the rights of the owner of the location.

• The right of disclosure

The artist him or herself is the only person who can decide when and how to disclose his or her work, without anyone having the right to force the artist to make it public. This is true even when the artwork was commissioned via an order placed with the artist. 

• The right to repent or withdraw

If an artist regrets having made his or her work public, they have the right to go back on this decision, even if they have already assigned their exploitation rights. In practice, however, this “right to repent” is very rarely exercised if a transfer of rights has already occurred because the law requires that the artist first compensate the beneficiary for the prejudice caused.
 

Moral rights are perpetual, inalienable and imprescriptible.

This means that unlike economic rights, which expire 70 years after the death of the artist, the artist’s moral right persists beyond this period. Moreover, the artist cannot waive this right, nor assign it to a third party, even if they are willing to do so. Any clause in a contract that provides otherwise is legally null and void.
It is important to note that since moral rights are considered to be strictly related to the artist’s “personality” and are not transferable, collecting societies - and particularly ADAGP - cannot exercise these rights. 

Only the artist or their heirs may take legal action for payment of damages due to a violation of an artist’s moral rights.

The second category of copyright corresponds to economic rights: 

• Resale rights

Resale rights are specific to the graphic and visual arts fields. They make it possible for the artist to collect a percentage of the resale price for his/her works on the art market.

Find out more about the resale rights 

• The right to reproduce and the right to represent/exhibit

The right to reproduce a work allows the artist to authorize or prohibit the material fixation or recording of his/her work on any medium.

The right to represent or to exhibit a work allows the artist to authorize or to prohibit the communication of his/her work to the public.

Find our more about the right to reproduce and the right to represent a work

Find out more about collective rights

Unlike moral rights, economic rights last for the entire lifetime of the artist and persist for 70 years after his or her death.

The economic rights to reproduce or represent a work are subject, however, to certain exceptions which correspond to situations when the artist's authorization is not required. The uses authorized within this framework must nevertheless respect the moral rights of the artist. 

Three conditions must be met to implement these exceptions: 

1. Uses must fall within the scope of one of the exceptions listed in article L 122-5 of the French Intellectual Property Code. 
2. Exceptions “must not interfere with the normal exploitation of the work”.
3. Finally, they cannot “cause unjustified harm to the legitimate interests of the artist”.

In the field of visual arts, three exceptions are more particularly noteworthy: 

The private copy exception 

The so-called “private copy” exception is intended to allow individuals, acting for non-professional purposes, to copy works for their personal use. Once the work has been disclosed, the artist cannot prohibit this type of exploitation. 
However, the law does provide for a financial compensation mechanism for artists (the “private copy levy”), intended to establish a fair balance between the interests of the public and those of creators. Private copy remuneration is collected by Copie France, and the funds are redistributed to authors and artists by their collecting societies and organizations, such as ADAGP. 

The exception for immediate information via the press

This exception allows print, audiovisual and online media outlets to use a graphic, visual or architectural work of art “for the exclusive purpose of immediate information and in direct relation to such information”, but they must mention the name of the artist. 

This exception, making it possible to reconcile the right to information and copyright, is subject to regulations and requires several cumulative conditions for implementation:

1. The work must be represented or reproduced “by means of written, audiovisual or online press”. This exception does not cover general information benefiting any website or brochure with an informative purpose.
2. The work must be used for the "exclusive purpose of immediate information". It is the immediacy of the information that justifies, among other criteria, that the artist's prior agreement can be dispensed with.
3. The article or the report using the image of the work must present information “directly related” to the work (e.g.: announcement of an art opening, article on the theft of a piece of artwork, etc.).
4. The work reproduced or represented must not be directly intended to provide news information (e.g.: a photo of an event taken by a reporter).

The law further specifies that “reproductions or representations which, in particular by their quantity or format, are not in strict proportion to the exclusive purpose pursued to provide immediate information or which are not directly related to such information shall give rise to remuneration of the artists on the basis of the agreements or rates in force in the relevant professional sectors.”

The exception relating to court-ordered auction catalogs

 
When a graphic or visual work of art is put up for sale at a court-ordered auction conducted in France, it may be reproduced in the sales catalog “for the sole purpose of describing the works of art put up for sale” and must mention the artist’s name and the source (Article L122-5 3.d).
Article R122-1 specifies that “a catalog for the sale of graphic or visual works of art is understood as copies of a list, whether or not illustrated, distributed before a sale by public auction, describing, with a view to informing potential buyers, the works which will be sold off during the sale, as well as the conditions of the auction and made available free of charge or at cost price to any person who requests such catalog from the public or ministerial officer in charge of the auction.”
This exception applies only to court-ordered auction catalogs. Catalogs published by private sales houses are not covered.